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REPORT ON

THE LAWFUL USE OF VIOLENCE BY THE AFRICAN NATIONAL CONGRESS (ANC) AGAINST THE APARTHEID REGIME

UNDER INTERNATIONAL LAW BY

DR ISMAIL VADI

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INSTRUCTIONS

1. I have been instructed by Riverway Law to provide a report on matters within my expertise in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (“Hamas”).

2. The British government has proscribed the organisation Hamas as part of its counter-terrorism policy. Such proscription of legitimate resistance movements serves to inhibit the path to peace, especially while parties aim to end the system of Apartheid in the Occupied Palestinian Territories. South Africa’s apartheid regime (1948 - 1994) enforced racial segregation and White minority dominance over the Black majority through laws restricting land ownership, movement, political participation, and education. These oppressive policies, upheld by state violence, devastated Black communities and sparked widespread resistance to and global condemnation of apartheid. This Report provides a perspective on the lawful use of violence by the African National Congress (“ANC”) against the apartheid regime under international law.

QUALIFICATIONS

3. I give this Report in my personal capacity.

4. I hold the following qualifications: an MA in History from the University of the Witwatersrand, an MA in Security Studies from the University of Pretoria, and a PhD in Political Science from the University of Pretoria.

5. I am a founder member of the Progressive Teachers’ League in Lenasia, Johannesburg (South Africa). I also served as the National Vice-President of the South African Democratic Teachers’ Union. In addition, I served in the Gauteng provincial leadership structure of the ANC from 2000 to 2018.

6. I served as a Member of Parliament for the African National Congress (ANC) from 1994 until 2010. Subsequently, I was appointed a Member of the Executive Council (“MEC”) for Roads and Transport in the Gauteng Provincial Government, South Africa, and served in this position until 2019.

7. I have lectured at the University of the Witwatersrand: Faculty of Education.

8. I have retired from formal politics but continue to be active in South African civil society.

9. I have multiple publications on education, South African liberation history, security studies and Muslims in South Africa.

THE LAWFUL USE OF VIOLENCE BY THE AFRICAN NATIONAL CONGRESS (ANC) AGAINST THE APARTHEID REGIME UNDER INTERNATIONAL LAW

3. INTRODUCTION

10. Apartheid in South Africa endured from 1948 to 1994. This was after the National Party (“NP”) narrowly won the all-White election in 1948 and thereafter implemented policies deeply rooted in a racist ideology and a discriminatory political system of White domination.¹ This was a brutal system of institutionalised racial segregation and discrimination that denied fundamental human rights to the majority Black population (African, Coloured and Indian).² Its antecedents however can be traced first to the period of Dutch and later British colonial rule in South Africa.

11. Black South Africans were forced to live in separate areas from White South Africans and used separate public facilities and amenities, with limited contact permitted between the different racial groups. Each racial group was physically segregated by designated residential areas and

¹ John Dugard, Confronting Apartheid: A Personal History of South Africa, Namibia and Palestine (Jacana Media, 2018), pp. 39 – 47; Shola Lawal, “South Africa: 30 years after apartheid, what has changed?” (Aljazeera.com, 27 April 2024) https://aje.io/958y5x, accessed on 11 November 2024.

² African Union Human Rights Memorial, “AUHRM Project Focus Area: The Apartheid”, (African Union Human Rights Memorial, n/d), https://au.int/en/auhrm-project-focus-area-apartheid, accessed on 6 November 2024.

separate public amenities and faced severe restrictions on social interactions, including mixed or inter-racial marriages.³

12. Since the late 19^th century, Africans had formed several regional political and civil society organisations in different parts of South Africa and established independent newspapers and churches to give expression to their hopes and aspirations, articulate their grievances and to champion their struggles for socio-political changes. After the Union of South Africa in 1910 under the auspices of the British government, the ANC – established in January 1912 – emerged as the premier national organisation representing Africans in South Africa. From the time of its formation until its banning in April 1960 by the apartheid state, the ANC resisted White minority rule and oppressive laws through non-violent means. However, its mode of peaceful resistance was met with increasing levels of state violence and repression. Mass mobilisation campaigns against apartheid, particularly in the 1950s, led to widespread arrests, political trials, and bans on activists, leaders and political organisations such as the Communist Party of South Africa (“CPSA”).⁴

13. In March 1960, the South African Police of the apartheid state killed 67 (Sixty-Seven) peaceful protesters and injured 186 (One Hundred and Eighty-Six) others in Sharpeville in Transvaal, South Africa ("Sharpeville Massacre"), which triggered widespread protests and strikes across the country. Consequently, the apartheid government declared a State of Emergency, detained over 1 200 activists and leaders of the liberation movement, and banned the ANC and the Pan Africanist Congress ("PAC") in April 1960.⁵

14. In response, the ANC formed in December 1961 its armed wing, Umkhonto we Sizwe (“MK”), with Nelson Mandela, Joe Slovo and Walter Sisulu playing key roles in its establishment.⁶

15. On 5 August 1962, Mandela was arrested for leaving the country without a passport and inciting a strike and was sentenced to a five-year term of imprisonment. However, in 1964, he, together with other leading figures in the ANC and MK such as Walter Sisulu, Ahmed Kathrada, Govan Mbeki and others, was sentenced to life imprisonment in the Rivonia Trial for sabotage and other charges. The formation of MK and its various acts of sabotage marked a significant shift in its approach to resisting apartheid.⁷

16. By the mid-1980s, amid growing internal resistance under the banner of the United Democratic Front (“UDF”), an intensification of the armed struggle by MK and international pressure to end apartheid and establish a democratic, non-racial South Africa, the apartheid regime responded even more brutally to the broad liberation movement by declaring a State of

³ Dugard, supra note 1, pp. 89 – 97.

⁴ For a detailed analysis of the formation of African groups in the late 19^th and early 20^th centuries, see Andre Odendaal, The Founders: The Origins of the ANC and the Struggle for Democracy in South Africa (Jacana Media, 2012). Also see Arianna Lissoni et al, One Hundred Years of the ANC: Debating Liberation Histories Today (Wits University Press – South African History Online, 2012) for both an historical and contemporary analysis of the ANC.

⁵ Sylvia Neame, The Congress Movement: The Unfolding of the Congress Alliance 1912 – 1961 Volume 3 (HSRC Press, 2015), pp. 516 – 517; “Origins: Formation, Sharpeville and banning, 1959-1960”, (South African History Online, 30 March 2011, last updated 16 November 2016), https://www.sahistory.org.za/article/origins-formation-sharpeville-and-banning-1959-1960,

accessed on 11 December 2024.

⁶ Nelson Mandela, Long Walk to Freedom (Abacus, 1995), pp. 325 – 340; Helena Dolny, Slovo: The Unfinished Autobiography of ANC Leader Joe Slovo (Ravan Press, 1997), pp. 170 – 186; Elinor Sisulu, Walter & Albertina Sisulu: In Our Lifetime (David Philip, 2002), pp. 146 – 147.

⁷ Ahmed Kathrada, Memoirs (Zebra Press, 2004), pp. 141 – 194; Thula Simpson, “Date with history: the arrest of Nelson Mandela”, (chathamhouse.org, August and September 2022 last updated 27 October 2022), https://www.chathamhouse.org/publications/the-world-today/2022-08/date-history-arrest-nelson-mandela, accessed on 11 December 2024.

Emergency and detaining 30 000 (thirty thousand) activists and leaders of the internal resistance movement in South Africa. The prolonged global isolation of the apartheid regime eventually forced it to yield and enter a negotiated political settlement with the ANC and other opposition groups.⁸

17. This Report will provide a historical overview highlighting the oppression suffered by Black South Africans under the apartheid regime. In addition, it will examine the lawful use of violence by the ANC against the apartheid regime under international law. It asserts that armed resistance constituted a lawful response to the grave oppression suffered by Black South Africans under apartheid and that such resistance was integral to the pursuit of liberating the oppressed in South Africa.

AN OVERVIEW OF APARTHEID IN SOUTH AFRICA

18. Apartheid was the official policy of racial segregation and discrimination enforced by the South Africa government under the National Party from 1948 to 1994. It introduced in the body politic of the country a “period of racial legislation more thoroughgoing, more grotesque perhaps, than anything the country or the world had yet seen”.⁹ It deceptively claimed to promote “separate but equal development" and cultural expression of different racial groups. However, apartheid's implementation was a brutal exercise in systemic oppression.¹⁰ The system stemmed from South Africa’s history of colonisation and slavery under Dutch and British colonial rule.¹¹

19. Despite becoming a self-governing dominion in 1910 under the British Empire, South Africa retained these racially discriminatory practices. Following the Anglo–Boer War (1899 – 1902), which the Afrikaners lost, Afrikaner nationalists, driven by anti–British sentiment and a White supremacist ideology, won power in 1948 under the banner of the National Party and further institutionalised racially oppressive laws under a system of apartheid.¹²

20. In short, “apartheid” refers to the comprehensive system of racial segregation and discrimination that permeated all aspects of life in South Africa between 1948 and 1994. “Petty apartheid” refers to the specific measures and laws aimed at preventing socialisation between different racial groups at a more localised and everyday level.

21. This abhorrent system mandated the physical and social separation of racial groups, entrenching gross inequality between Whites and Blacks (African, Coloured and Indian). Additionally, it criminalised inter-racial marriage and social integration, fostering an

⁸ See Sylvia Neame, Drama of the Peace Process in South Africa: I Look Back 30 Years (BestRed/HSRC, 2021) for a detailed analysis of the processes leading up to the negotiations between the ANC and the apartheid regime. Also see AUHRM, AUHRM Focus Area: The Apartheid, supra note 2.

⁹ Edward Roux, Time Longer Than Rope: The Black Man’s Struggle for Freedom in South Africa (The University of Wisconsin Press, 1964), pp. 366 – 378; “Apartheid” (The Martin Luther King, Jr. Research and Education Institute, n/d) https://kinginstitute.stanford.edu/apartheid#:~:text=Apartheid%20(meaning%20%E2%80%9Capartness%E2%80%9D

%20in,mixed%20race)%2C%20and%20white, accessed on 5 November 2024.

¹⁰ “A History of Apartheid in South Africa”, (South African History Online, 6 May 2016, last updated 5 April 2022), https://www.sahistory.org.za/article/history-apartheid-south-africa, accessed on 5 November 2024.

¹¹ “Apartheid: A Short History”, (Anti-Apartheid Legacy UK, n/d), https://antiapartheidlegacy.org.uk/heritage-arts- culture/history/apartheid-a-short- history/#:~:text=It%20was%20the%20law%20of,these%20early%20settlers%20were%20farmers, accessed on 12 December 2024.

¹² Robert C. Cottrell, South Africa: A State of Apartheid (Chelsea House Publishers, 2005), pp. 2 – 6 and 59 – 94.

atmosphere of suspicion and fear. Apartheid deliberately disadvantaged the Black majority, relegating them to a life of inequality, poverty and disenfranchisement simply due to their skin colour.¹³

22. While building upon pre-existing segregationist policies, apartheid distinguished itself through its legally codified and ruthlessly enforced nature; it employed a fearsome state apparatus to punish dissenters and maintain its grip on power.¹⁴

23. Ironically, apartheid's emergence coincided with a global shift away from racist ideologies in the post-World War II era, making its implementation even more reprehensible in the eyes of the international community.¹⁵

24. The roots of apartheid policy lay in a toxic blend of racial superiority and fear. It is grounded in the belief of the inherent racial superiority of White South Africans and a pervasive and insidious ideology of Christian nationalism, which fuelled discriminatory policies and statutes enacted by the apartheid regime. Fear, particularly among the White minority, of losing their political, socio-economic, linguistic and cultural dominance further motivated the entrenchment of apartheid.¹⁶

25. The creation of the apartheid state resulted in numerous laws being passed, resulting in the codification of law and a legal system built on institutionalised racial discrimination, segregation and inequality, coupled with ruthless and inhumane enforcement.¹⁷

26. This explanation, however, does not justify the profound injustices and human rights violations perpetrated under apartheid. It merely provides a glimpse into the warped mindset underpinning this dark chapter in South African history.

27. The following discussion briefly outlines the historical evolution of the ANC’s struggle against the apartheid state utilising peaceful means and later armed resistance.

HISTORICAL EVOLUTION OF ANC RESISTANCE TO SEGREGATION AND APARTHEID

28. The struggle against apartheid in South Africa was a protracted and multifaceted conflict, marked by decades of peaceful resistance, primarily by the African National Congress, and followed by a turn to armed resistance since 1961 in the face of escalating state violence, intensified repression and systemic oppression of the Black majority.

29. The ANC, founded in 1912, focused on peaceful resistance against racially discriminatory laws and practices. Initial methods included petitions, representations and delegations to the White government, and later it organised mass-based civil disobedience campaigns like the Defiance

¹³ For a detailed examination of apartheid policy see Leo Marquard, The Peoples & Policies of South Africa (Oxford University Press, 1969).

¹⁴ Cottrell, supra note 12.

¹⁵ Ibid.

¹⁶ For an historical analysis of the philosophy underpinning Afrikaner nationalism and its attendant policy of apartheid, see Hermann Giliomee, The Rise & Demise of the Afrikaners, (Tafelberg, 2019).

¹⁷ Robert M. Price, The Apartheid State in Crisis: Political Transformation in South Africa 1975 – 1990 (Oxford University Press, 1991), pp. 13 – 26.

Campaign of 1952 (“Defiance Campaign”).¹⁸ The Defiance Campaign was a significant moment in the struggle against apartheid as it marked the first time that people of all races came together to resist the government's discriminatory policies.¹⁹

30. The ANC and its allies organised the Defiance Campaign. It involved thousands of volunteers across the country defying selected discriminatory laws and regulations, for which over 8 000 (Eight Thousand) people were arrested and imprisoned. The campaign was a powerful demonstration of the people's peaceful opposition to apartheid, and it helped to galvanise mass- based resistance to apartheid.²⁰

31. On 25-26 June 1955, the ANC, the South African Indian Congress, the South African Coloured People’s Congress and the South African Congress of Democrats, commonly known as the ‘Congress movement’, organised a national gathering in Kliptown (Johannesburg) labelled as the Congress of the People, which adopted the Freedom Charter. The Freedom Charter called for a non-racial, democratic South Africa based on broadly liberal principles and fundamental human rights. The apartheid state responded to this creative and peaceful initiative by arresting in December 1955, 156 (one hundred and fifty-six) leaders of the Congress movement on a charge of treason. The Treason Trial lasted until 1961, when all the defendants were acquitted.²¹

32. Despite the display of unwavering solidarity and united action, the apartheid regime responded with increasing brutality, culminating in the Sharpeville Massacre of 1960, where police opened fire on peaceful protestors, killing 67 (Sixty-Seven) Africans and wounding 186 (One Hundred and Eighty-Six) others.²² This watershed moment marked a turning point in the struggle, with many concluding that peaceful resistance was futile against a regime determined to maintain its power through violence. The Sharpeville Massacre also had wider impact on the international community, as it led to condemnation of the apartheid regime and increased support for the anti-apartheid movement.²³

33. On its part, the apartheid state took the extraordinary step of banning the ANC and the Pan Africanist Congress (“PAC”) in April 1960 under the Unlawful Organisations Act, No. 34 of 1960 (“Unlawful Organisations Act”), thereby forcefully restricting all forms of peaceful resistance to apartheid.²⁴

34. This proscription criminalised peaceful opposition to apartheid, forcing activists into hiding, exile, or covert operations. The government’s intent was clear – it was attempting to eradicate

¹⁸ “ANC History: A Brief History of the African National Congress”, (African National Congress, n/d), https://www.anc1912.org.za/history/, accessed on 7 November 2024.

¹⁹ Anthony Sampson, Mandela: The Authorised Biography (HarperCollinsPublishers, 2000), pp. 66 – 76; “Defiance Campaign 1952”, (South African History Online, 21 March 2011 last updated 27 August 2019),

https://www.sahistory.org.za/article/defiance-campaign-1952, accessed on 7 November 2024.

²⁰ Sampson, ibid.; Ismail Vadi, The Congress of the People and Freedom Charter: A People’s History (Jacana Media, 2015), pp. 55 – 56.

²¹ For a detailed study of this campaign, see Ismail Vadi, The Congress of the People and Freedom Charter: A People’s History (Jacana Media, 2015).

²² South African Democracy Education Trust (SADET), The Road to Democracy in South Africa Volume 1 (1960 – 1970), (Zebra Press, 2002), pp. 68 – 69.

²³ SADET, ibid, pp. 68 – 125.

²⁴ “Unlawful Organizations Act, No. 34 of 1960”, (22 February 2016, last updated 27 August 2019), https://www.sahistory.org.za/archive/unlawful-organizations-act-act-no-34-1960, accessed on 7 November 2024; “Sharpeville Massacre, 21 March 1960”, (South African History Online 31 March 2011, last updated 22 March 2024),

https://www.sahistory.org.za/article/sharpeville-massacre-21-march-1960, accessed on 11 December 2024.

any organised political resistance and maintain White minority rule by fear and force.²⁵ Weighed holistically, considering the ban and repression, it became apparent to Black citizens that armed resistance was a necessity.²⁶

35. The Act outlawed any organisation that the government deemed to be promoting communism. This stemmed from the Suppression of Communism Act, which was defined broadly to include any opposition to the government. The banning of the ANC and the PAC forced their structures and leaders underground and made it difficult for them to operate openly. This further limited the avenues for peaceful resistance and made armed resistance seem like the only viable option for many.²⁷

36. With key leaders arrested or in hiding and lawful avenues for protest blocked, the morale of the anti-apartheid movement suffered. Ordinary activists and sympathisers faced intimidation, detentions without trial, and state surveillance, fostering a climate of uncertainty, terror and fear.²⁸

37. Henceforth, grassroots ANC organisers and activists and leaders operated clandestinely, distributing underground literature and maintaining secret communication networks. Once open and mass-based, the liberation struggle had to navigate the clandestine world of underground networks and secret meetings.²⁹

38. As a result of a variety of oppressive laws implemented from the inception of the apartheid state, the Sharpeville massacre, and the banning of the ANC, the failure of passive resistance became undeniable.³⁰ These factors made it clear to leaders of the ANC and the broader Congress movement that armed resistance was the only viable course of action, as passive resistance had failed since 1912 in the face of relentless state violence and oppression.³¹

39. These political changes significantly influenced South Africa’s liberation movements. The ANC and the clandestine South African Communist Party (“SACP”) intensified efforts to combat apartheid, moving beyond non-violence as government brutality convinced them of the need for armed resistance. On 16 December 1961, a new military formation, Umkhonto we Sizwe (“MK”), was launched as the armed wing of the ANC.³²

40. The armed struggle was a central feature of MK's operational strategy, with the sabotage campaign intended as a transitional phase towards the development of guerilla warfare against the apartheid system. The ANC's decision to create a separate and independent organ, MK, marked the beginning of a thirty-year armed struggle against the apartheid state. This decision was driven by the need to respond to the state's violent repression and the belief that non- violent methods had become ineffective. MK's formation allowed the ANC to pursue a revolutionary approach, while maintaining its principled commitment to non-violence.³³

²⁵ Stephen R. Davis, The ANC’s War against Apartheid: Umkhonto we Sizwe and the Liberation of South Africa, (Indiana University Press, 2018), p. 20.

²⁶ Tom Lodge, Black Politics in South Africa since 1945 (Rava Press, 1983), pp. 231 – 240.

²⁷ John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015), p. 120.

²⁸ Magdeleine Fullard, “State Repression in the 1960s” in SADET, The Road to Democracy in South Africa Volume 1 (1960– 1970),

(Zebra Press, 2002), pp. 341 – 349.

²⁹ Tom Lodge, Black Politics in South Africa since 1945 (Rava Press, 1983), pp. 231 – 234.

³⁰ Davis, supra note 25, pp. 1 – 5.

³¹ Susan H. Farbstein, “Reflections on the Question of When, if Ever, Violence Is Justified in Struggles for Political or Social Change”, Harvard Human Rights Journal, 27 (2014), pp.1 – 5.

³² Helena Dolny, Slovo: The Unfinished Autobiography of ANC Leader Joe Slovo, (Ocean Press, 1997), pp. 170 – 186.

³³ Paul S. Landau, “The ANC, MK, and ‘The Turn to Violence’ (1960–1962)”, South African Historical Journal, Vol. 64 No. 3, September 2012, pp. 540 – 560.

41. In the early years, MK's collaboration with the SACP was significant, with White communists, having served in the South African armed forces during the Second World War, training recruits in clandestine operations and sabotage techniques.³⁴

42. The rise of independent African states in the 1960s, driven by Pan-Africanism, provided crucial support to the liberation movement. Many African states backed the liberation struggle through the Organisation of African Unity (“OAU”), and some offered refuge to ANC leaders, with others such as Algeria allowing military training camps for ANC combatants. MK also extended its reach, securing military training and material support from some former East European socialist states and the former Soviet Union, which enabled it to co-ordinate and sustain its operations domestically and internationally.³⁵

43. In essence, the early years of armed resistance by MK and the ANC were marked by a transition from passive resistance to armed struggle, influenced by the repressive acts of the apartheid state and the lack of political rights for Blacks. Subsequent shifts in strategy involved changes in its military policies and operational structure, intensified armed activities, negotiations, and the demobilisation of MK as part of the transition to a multiparty democracy in the 1990s.

SYNOPSIS OF THE DEVELOPMENT OF MK’s ARMED RESISTANCE TO APARTHEID

44. The ANC announced the adoption of a policy of armed struggle against the apartheid state on

16 December 1961.³⁶

45. The decision to resort to violence was carefully considered and justified within the framework of the “just war” principle, as evidenced by Mandela's famous "I am prepared to die" speech during his trial in 1964. The recourse to violence was seen as a means of self-defence against a repressive regime following the failure and criminalisation of non-violent resistance.³⁷

46. The culture of violence that emerged during the anti-apartheid struggle provided an outlet for those who experienced deprivation and served to inspire, motivate and spur the anti-apartheid movement. In addition, armed struggle was perceived as a means of reclaiming personal dignity and demonstrating worth in pursuing a morally exemplary cause.³⁸

47. The use of armed resistance against the apartheid regime was justified as a form of self-defence and a response to the state's violent suppression of peaceful efforts. The decision to adopt violent methods was made carefully considering the principles of the just war tradition.³⁹

48. The formation of MK was a carefully considered decision. It was intended as an armed wing capable of sabotage against government installations, designed to make the regime’s continuation of apartheid costly without inflicting widespread harm on civilians.⁴⁰ Leaders stressed that armed struggle would be pursued as a last resort, necessitated by the closure of peaceful political space.⁴¹

³⁴ Davis, supra note 25, pp. 4 – 5.

³⁵ SADET, supra note 22, pp. 125 – 132.

³⁶ Kenneth Christie, The South African Truth Commission (Palgrave Macmillan, 2000), pp. 15 – 19.

³⁷ Rob Watts (ed), Criminalizing Dissent, (Routledge, 2019), pp. 195 – 220.

³⁸ Pierre du Toit, South Africa's Brittle Peace, (Palgrave Macmillan, 2001), pp. 82 – 90.

³⁹ Davis Supra Note 25, p. 102.

⁴⁰ Davis, supra note 25, pp. 4, 14, 30, 48, 102 132, 215.

⁴¹ Nelson Mandela, Long Walk to Freedom (Abacus, 1995), pp. 276 – 278.

48. The overriding intention behind forming MK was never to unleash indiscriminate violence but rather to make the apartheid state understand that it could no longer maintain oppressive policies without consequence.⁴² The use of force was positioned as a necessary tool in the pursuit of liberation, bounded by moral constraints and ultimately aimed at restoring peace under a democratic constitutional order.

49. MK played a crucial role in the struggle against apartheid in South Africa.⁴³ Its history can be divided into several phases, each marked by different strategies and challenges. These phases include the initial sabotage campaigns, attempts at guerrilla warfare, reorganisation and political- military co-ordination, which resulted in increased military operations, elements of people's war and insurrection, negotiation, and finally, integration into the South African National Defence Force (“SANDF”).⁴⁴

50. Initially, MK adopted a strategy of sabotage rather than direct attacks on individuals. In his opening statement on 20 April 1964 to the Pretoria Supreme Court during the Rivonia Trial, Nelson Mandela clearly spelt out that the aim of armed resistance was to limit the loss of civilian lives, by asserting:

Four forms of violence were possible. There is sabotage, there is guerilla warfare, there is terrorism, and there is open revolution. We chose to adopt the first method and to exhaust it before taking any other decision. In the light of our political background the choice was a logical one. Sabotage did not involve the loss of civilian life, and it offered the best hope for future race relations. Bitterness would be kept to a minimum and, if the policy bore fruit, democratic government could become a reality. This is what we felt at the time, and this is what we said in our manifesto. “We, of Umkhonto we Sizwe have always sought to achieve liberation without bloodshed and civil clash. We hope, even at this late hour, that our first actions will awaken everyone to a realisation of the disastrous situation to which the Nationalist policy is leading. We hope it will bring the government and its supporters to their senses before it is too late, so that both the government and its policies can be changed before matters reach the desperate stage of civil war”.⁴⁵

51. The aim of MK was to strike infrastructure targets such as railway lines, power stations, and government offices, thereby undermining the apartheid state’s functioning without causing loss of life.⁴⁶ MK operatives were instructed to avoid civilian casualties and to inflict damage that would symbolically demonstrate the regime’s vulnerability.⁴⁷ This approach was consistent with the emerging “just war” standard of proportionality and demonstrated a conscious effort to limit harm.⁴⁸

52. Between 1961 and 1963, MK carried out over a hundred acts of sabotage, carefully selected to reduce the risk to civilians. Reports indicate that no civilians were killed in these early

⁴² Landau, supra note 33, p. 552.

⁴³ “Umkhonto we Sizwe - Structure, Training and Force Levels (1984 to 1994)”, (The Nelson Mandela Foundation, n/d), https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02961.htm, accessed on 13 December 2024.

⁴⁴ Ibid.

⁴⁵ Nelson Mandela, “Statement from the dock in Pretoria Supreme Court, 20 April 1964, at the opening of the defence case”, cited in Nelson Mandela, The Struggle is My Life (IDAF Publications, 1978), p. 167.

⁴⁶ Davis, supra note 25, pp. 102 and 215.

⁴⁷ Tsepe Motumi, “Umkhonto we Sizwe - Structure, Training and Force Levels (1984 to 1994)”, African Defence Review (1994) 18, https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02961.htm, accessed on 13 December 2024.

⁴⁸ Michael Walzer, Just and Unjust Wars, (Basic Books, 2006), pp. 90 – 108.

operations.⁴⁹ The emphasis on sabotage rather than terrorism distinguished MK’s activities from indiscriminate violence and positioned it as a legitimate armed response within a liberation struggle recognised by evolving international standards.⁵⁰

53. Despite the setbacks of the early 1960s because of the arrest and life imprisonment of the MK High Command during the Rivonia Trial of 1963 – 1964, MK sought to continue the armed struggle. Drawing on alliances with the SACP and sympathetic states in neighbouring countries, MK established training camps in some neighbouring African states and attempted to launch guerrilla campaigns.⁵¹

54. The Wankie Campaign in 1967, a joint operation with the Zimbabwe People's Revolutionary Army (“ZIPRA”), marked a significant effort to infiltrate guerrilla fighters into South Africa through Rhodesia (“Zimbabwe”).⁵² The campaign aimed to establish bases within Rhodesia and conduct raids into South Africa. However, the Wankie Campaign, like other early attempts at guerrilla warfare, proved largely ineffective. With their superior resources and intelligence, the South African security forces could suppress MK's incursions.⁵³

55. One of the key challenges faced by MK during this period was the relationship between the political and military leadership. Tensions and disagreements over strategy and tactics hampered MK's effectiveness. The Wankie Campaign, for example, exposed weaknesses in co- ordination and communication between the political and military wings of the ANC.⁵⁴

56. This period highlighted MK's challenges in conducting sustained guerrilla warfare within South Africa's borders. The lack of suitable terrain, the strength of the South African security forces, and the difficulties of operating in a hostile environment all contributed to MK's operational challenges and weaknesses.

57. The Soweto students’ uprising began on 16 June 1976, when thousands of Black students protested the mandatory use of Afrikaans as the medium of instruction in schools. The peaceful protest turned violent when police opened fire on the students, leading to widespread unrest and a brutal crackdown by the apartheid regime. The uprising resulted in hundreds of deaths and injuries, drawing international attention to the oppressive nature of the apartheid system and galvanising further resistance within South Africa and abroad. It demonstrated the regime's willingness to use lethal force against unarmed civilians and again highlighted the limitations of peaceful resistance. A consequence of state brutality was that several thousand students fled the country; most of whom joined the ANC and MK, thereby giving new momentum to the armed struggle in subsequent years.⁵⁵

58. Following the Soweto students’ uprising, MK underwent a period of internal reorganisation and reassessment. The "Green Book", a strategic document produced during this period, outlined a new approach to the armed struggle, emphasising the "people's war" concept. This

⁴⁹ Davis, supra note 25, p. 18

⁵⁰ Watts, supra note 37, pp. 211 – 220.

⁵¹ Rebecca M. Kulik, “Umkhonto we Sizwe”, (Encyclopaedia Britannica, 4 September 2024), https://www.britannica.com/topic/Umkhonto-we-Sizwe, accessed on 14 December 2024.

⁵² “Armed Struggle and the Advancement of the Student and Labour Movements, 1967-1976”, (South African History Online, 21 March 2011, updated 24 March 2016), accessed on 12 December 2024.

⁵³ Leopold Scholtz, “Lessons from the Southern African Wars: A Counterinsurgency Analysis”, Southern Journal for Contemporary History (2011) 36(2), pp. 203 – 204.

⁵⁴ James Ngculu, The Role of Umkhonto we Sizwe in the Creation of a Democratic Civil-Military Relations Tradition (University of the Western Cape, 1999), pp. 241 – 243.

⁵⁵ Tom Lodge, Black Politics in South Africa since 1945 (Rava Press, 1983), pp. 321 – 343.

involved closer co-ordination between political and military activities, focusing on mobilising the masses and building underground structures within South Africa.⁵⁶

59. Archival materials such as internal MK documents and training manuals provide valuable insights into the organisation's structure, training methods, and evolving strategies during this period. These sources reveal MK's challenges in maintaining secrecy, co-ordinating activities across borders, and adapting to the changing political landscape.⁵⁷

60. However, ANC structures inside South Africa remained weak during this period and could not supply reliable support for MK units, which operated mainly in isolation from mass combat groups. The ANC faced organisational shortcomings that prevented it from exploiting pockets of revolutionary preparedness among the oppressed inside the country. The average survival period for guerrillas was six months, and the South African police successfully infiltrated several MK command structures.⁵⁸

61. Notwithstanding the above, the 1980s witnessed a significant escalation in MK operations inside the country. Attacks on police stations, government buildings, and economic targets became more sophisticated and frequent. MK also increasingly targeted the homes of apartheid officials and carried out physical attacks and assassinations of persons collaborating with the apartheid regime, marking a shift away from the earlier emphasis on avoiding civilian casualties.⁵⁹

62. This period saw MK adopt a more aggressive approach, reflecting the growing intensity of the anti-apartheid struggle. The "people's war" strategy aimed to create a climate of instability and make apartheid ungovernable. While MK's actions contributed to the pressure on the apartheid regime, its conduct also raised ethical questions about the use of violence and its impact on civilians.⁶⁰

63. In 1985, the ANC declared the advent of people's war, but the organisation's internal weaknesses and South African police actions made it increasingly difficult for MK to maintain supplies and reinforcements. The ANC received a new flow of military aid from the Soviet Union, including AK-47s, land mines, explosives, and uniforms, which it hoped to use in furthering the struggle.⁶¹

64. MK's actions in the mid-1980s significantly impacted the anti-apartheid struggle. They helped to raise international awareness of the situation in South Africa, inspired internal resistance, and contributed to the growing pressure on the government to negotiate an end to apartheid.⁶²

65. By the late 1980s, South Africa was in deep crisis.⁶³ Sustained internal unrest and mass mobilisation, international sanctions, and the escalating costs of maintaining apartheid were taking their toll on the apartheid state. MK continued its armed activities, carrying out high-

⁵⁶ Ronnie Kasrils, “Umkhonto We Sizwe (MK): How the Armed Struggle Succeeded”, (Black Agenda Report, 7 December 2016), https://www.blackagendareport.com/how_south_africa_armed_struggle_succeeded, accessed on 13 December 2024.

⁵⁷ Motumi, supra note 47.

⁵⁸ Robert Ross, Anne Kelk Mager and Bill Nasson, The Cambridge History of South Africa: Volume 2, 1885–1994 (Cambridge University Press, 2011), pp. 460 – 480.

⁵⁹ Davis, supra note 25, pp. 22, 201 and 218.

⁶⁰ Kulik, supra note 51.

⁶¹ Kasrils, supra note 56.

⁶² Motumi, supra note 47.

⁶³ “Umkhonto we Sizwe (MK) Timeline 1961-1990”, (South African History Online, published 20 March 2011, last updated 25 April 2024), https://www.sahistory.org.za/article/umkhonto-wesizwe-mk-timeline-1961-1990, accessed on 13 December

2024.

profile attacks such as the bombing of the SADF's Witwatersrand Command complex in Johannesburg.⁶⁴

66. The bombing of the Sasol and Natref Refineries in Secunda and Sasolburg in 1980 targeted the synthetic fuel plants owned by the apartheid government, strategically intended to cripple fuel supplies without harming civilians. MK operatives executed the bombings at night, ensuring no civilian workers were on-site, though one person was left injured.⁶⁵

67. The attack in 1982 on the Koeberg Nuclear Power Station in Cape Town was a highly strategic operation. MK successfully sabotaged the Koeberg Nuclear Power Station, causing extensive damage without any injuries. The attack aimed to counter claims that the ANC and MK operated solely outside South Africa. MK also paid tribute to its fallen heroes and imprisoned comrades, particularly those killed in the “Maseru massacre” following a South African Defence Force raid into Lesotho. Additionally, MK reiterated its warning to foreign investors about supporting apartheid South Africa.⁶⁶

68. In the early 1960s, it is estimated that the MK conducted over 190 acts of sabotage between 1961 and 1963 without any death or injury.⁶⁷ In addition, the operations list of MK refers to 1 500 attacks between 1977 and 1989.⁶⁸

69. Whatever its limitations, MK played an essential role in the struggle against apartheid, employing armed resistance to challenge an oppressive regime. While its actions reflected both the desperation and determination of the liberation movement, it also sparked ethical debates about the use of violence for political ends. As explained above, MK aimed to limit civilian casualties by focusing its armed actions on symbols of the apartheid regime, and military and police targets, recognising their role as the frontline defenders of apartheid. This approach underscored MK’s attempt to balance armed struggle with principles of minimising harm to non-combatants. However, there were instances, particularly in the 1980s, when MK actions resulted in the loss of civilian lives and injury to innocent bystanders.

70. Notwithstanding the above, there were instances in its history, particularly in the 1980s, when some high-visibility MK operations resulted in civilian casualties. This was the case despite the ANC consistently seeking to position its armed struggle within the framework of international law. Its leaders emphasised their commitment to the principles of international humanitarian law, particularly those concerning the conduct of hostilities.⁶⁹ The few instances where MK’s armed actions resulted in a worrying number of civilian casualties are described briefly hereunder.

⁶⁴ O'Malley Archives, “History of Umkhonto we Sizwe”, (Nelson Mandela Foundation: The Heart of Hope, n/d), https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02942.htm, accessed on 12 December 2024.

⁶⁵ “SASOL plant under attack”, (South African History Online, 16 March 2011, last updated 22 August 2019), https://www.sahistory.org.za/dated-event/sasol-plant-under-attack, accessed on 11 November 2024.

⁶⁶ “ANC attacks Koeberg nuclear power station”, (South African History Online, 16 March 2011, last updated 30 September 2019), https://www.sahistory.org.za/dated-event/anc-attacks-koeberg-nuclear-power-station, accessed on 11 November 2024.

⁶⁷ “List of Umkhonto we Sizwe Operations”, (South African History Online, 8 December 2014, last updated 12 April 2024), https://www.sahistory.org.za/article/list-umkhonto-wesizwe-operations, accessed on 11 November 2024.

⁶⁸ Peter Dickens, “The Not So Spectacular MK Attack on Voortrekkerhoogte”, (The Observation Post, 2017), https://samilhistory.com/tag/voortrekkerhoogte/, accessed on 11 December 2024.

⁶⁹ “Civilian Casualties of the Armed Struggle”, (Nelson Mandela Foundation, n/d), https://omalley.nelsonmandela.org/index.php/site/q/03lv03445/04lv04015/05lv04016/06lv04030/07lv04031.htm, accessed on 11 December 2024.

71. Church Street Bombing (Pretoria, 1983): This was one of MK's most notable attacks aimed at the South African Air Force (SAAF) headquarters. The explosion killed 19 people and injured over 200, including civilians. This incident is often cited in discussions of the complexities of guerrilla warfare, as MK targeted a military institution in an urban area with civilians nearby.⁷⁰

72. Johannesburg Magistrates Court Bombing (1987): Two bombs were detonated during this attack. The first was a small explosion which served as a decoy. The second explosion was more destructive, claiming the lives of three apartheid police officers and injuring ten others, including six bystanders.⁷¹

73. Magoo’s Bar Bombing (Durban, 1986): In this attack, MK operatives targeted a popular bar frequented by off-duty police officers, resulting in the deaths of three civilians and injuries to 69 others. The intended target was the police, but due to the nature of guerrilla operations, nearby civilians were also affected.⁷²

74. Ellis Park Stadium Bombing (Johannesburg, 1988): An MK bombing targeting military personnel resulted in the injury of two civilians. Guerrilla warfare tactics sometimes led to risks for civilians, as high-traffic areas were often shared by military and civilians alike. However, of importance in this attack is that at the Truth and Reconciliation Commission (“TRC”), the individual tried for the attack testified that he assumed that both deceased were members of the security team at the stadium.⁷³

75. While MK's operations did not lead to a full-scale insurrection, they contributed to the pressure on the government to negotiate an end to apartheid. The ANC's decision to suspend armed actions in 1990 signalled a shift towards a negotiated settlement.

76. In 1990, the ANC was unbanned, Nelson Mandela and other political prisoners were released, and members of the liberation movement in exile returned home. South Africa embarked on a negotiated transition to democracy. MK played a crucial role in this process, suspending its armed activities and participating in negotiations with the South African Defence Force and the apartheid government with a view to integrating combatants of the liberation armies into a restructured South African National Defence Force.⁷⁴

77. Integrating MK combatants into the newly formed SANDF was a complex and challenging undertaking. It involved merging former enemies into a unified force, addressing issues of rank, training, and discipline, and overcoming the legacy of mistrust and animosity. The process also required addressing the psychological and social impact on former combatants, the difficulties of adapting to a conventional military structure, and the potential for tensions within the integrated force.⁷⁵

⁷⁰ African National Congress, Further Submissions and Responses by the African National Congress to Questions Raised by the Commission for Truth and Reconciliation, (ANC, 12 May 1997), pp. 74 – 101 provide a comprehensive list of ANC-MK armed attacks in South Africa for which it claimed responsibility; “List of MK Operations”, (Nelson Mandela Foundation, n/d), https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02949.htm, accessed on 12 December 2024].

⁷¹ “Johannesburg Magistrate Court Bombed”, (South African History Online, n/d), https://www.sahistory.org.za/dated- event/johannesburg-magistrate-court-bombed, accessed on 13 December 2024.

⁷² “Magoo’s Bar is bombed”, (South African History Online, 16 March 2011, last updated 22 August 2019), https://www.sahistory.org.za/dated-event/magoos-bar-bombed, accessed on 11 November 2024.

⁷³ “A car bomb explodes at Ellis Park Rugby Stadium”, (South African History Online, 16 March 2011, last updated 23 August 2019), https://www.sahistory.org.za/dated-event/car-bomb-explodes-ellis-park-rugby-stadium, accessed on 11 November

2024.

⁷⁴ Kulik, supra note 51.

⁷⁵ Kulik, Ibid.

78. While the integration process was not without difficulties, it ultimately contributed to creating a non-racial national defence force. The integration of MK into the SANDF symbolised the end of apartheid and the beginning of a new era for the military in South Africa.

79. MK's transition from a guerrilla force to an integral part of the SANDF marked a significant transformation, symbolising the end of apartheid and the birth of a new democracy. Its history underscores the complexities of liberation struggles, the challenges of political transitions, and the ongoing debates about reconciling the past with the demands of a unified future in South Africa.

INTERNATIONAL LAW CONSIDERATIONS: BALANCING VICTIMS OF ARMED RESISTANCE AGAINST THE STRUGGLE FOR LIBERATION

80. Balancing the physical harm inflicted by guerrilla warfare on individuals against the moral imperative of liberation struggles against oppressive regimes, particularly one as entrenched and violent as apartheid, is a complex ethical and legal exercise. The ANC’s armed struggle must be situated in a broader framework encompassing just war theory, international humanitarian law, and the evolving international consensus on the right to self-determination.

81. What should be considered is that in asymmetric warfare, armed resistance movements like MK should consider the strategic value of civilians, as it may need to augment its ranks by enlisting or conscripting civilians to wage war. The strategic value of civilians in asymmetric war is different from that in conventional war, as state armies cannot prevail without disabling at least those civilians who provide war-sustaining services to its enemies. Therefore, the laws and ethics of war offer some general directions for armed and military attacks on associated targets, emphasising that strikes must be necessary, cost-effective, and the least harmful means available to accomplish a justifiable military aim.⁷⁶

JUST WAR THEORY AND MORAL IMPERATIVES

82. Just war theory provides an ethical vocabulary for evaluating the moral status of armed conflict, requiring that force be used only for a just cause, as a last resort, with right intention, proportionality, and a reasonable prospect of success.⁷⁷ In the case of apartheid South Africa, the ANC’s cause of overthrowing a systemically racist regime practising a crime against humanity was beyond dispute.⁷⁸ The Sharpeville Massacre, the banning of the ANC and PAC, and decades of non-violent resistance met by state brutality demonstrated that all peaceful avenues had been foreclosed.⁷⁹ The armed struggle thus emerged as a last resort, taken reluctantly after attempts at petitions, boycotts, and peaceful protests had been met with lethal force.

⁷⁶ Daniel Rothbart, Karina Korostelina and Mohammed Cherkaoui (eds), Civilians and Modern War (Routledge, 2012), pp. 156 – 162.

⁷⁷ Walzer, supra note 48.

⁷⁸ International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), 1015 UNTS 243, Art. II; Rome Statute of the International Criminal Court (1998), 2187 UNTS 90, Art. 7(1)(j).

⁷⁹ Thomas G. Karis and Gwendolen M. Carter, From Protest to Challenge: A Documentary History of African Politics in South Africa, 1882–1964, Vol.3 (Stanford University Press, 1977), pp. 200 – 205.

I. RIGHT TO SELF-DETERMINATION

83. The principle of self-determination, enshrined in the UN Charter and elaborated in General Assembly resolutions, recognises that peoples under colonial or racist domination are entitled to free themselves from oppression.⁸⁰ This right, supported by the International Covenant on Civil and Political Rights and reiterated in Additional Protocol I to the Geneva Conventions, legitimises the use of force in extreme cases where fundamental rights cannot be realised.⁸¹ Therefore, while any armed conflict risks harm, international law acknowledges that oppressed peoples may justifiably employ violence as a remedial measure to secure fundamental human rights and autonomy.⁸²

APARTHEID AS A CRIME AGAINST HUMANITY AND LEGITIMACY OF RESISTANCE

84. Apartheid was internationally condemned as a crime against humanity, codified in the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court.⁸³ The criminality of apartheid delegitimised the South African state’s claim to obedience and moral authority. By engaging in systematic, racially motivated human rights abuses, the apartheid regime forfeited its right to be considered a lawful government. Under these circumstances, the ANC’s armed struggle was not a mere rebellion but a legitimate insurrection against a criminal state structure.

PROPORTIONALITY, DISTINCTION, AND EFFORTS TO MINIMISE HARM

85. The ANC’s attempt to confine violence primarily to strategic and infrastructural targets rather than the civilian population reflected an application of proportionality and distinction. Under just war theory and international humanitarian law, these principles require that combatants discriminate between combatants and non-combatants and use only the force necessary to achieve legitimate military objectives.⁸⁴ By targeting infrastructure, security forces, and symbols of the apartheid state, MK sought to apply force proportionately, limiting unnecessary suffering. While inevitably, some civilian harm did occur - an almost unavoidable tragedy in prolonged conflicts - the record suggests that MK leadership and operatives made conscious efforts to minimise civilian casualties, thus demonstrating respect for these core ethical and legal norms.⁸⁵

⁸⁰ Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art.1(2); Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV) (1960).

⁸¹ International Covenant on Civil and Political Rights (ICCPR), 1966, 999 UNTS 171, Art1; Taylor, Paul, A Commentary on the International Covenant on Civil and Political Rights (Cambridge University Press, 2020), pp, 141 – 143.

⁸² Marco Longobardo, The Use of Armed Force in Occupied Territory (Cambridge University Press, 2018), pp, 149 – 159; Christopher Finlay, Terrorism and the Right to Resist (Cambridge University Press, 2015), pp. 136 – 140.

⁸³ Rome Statute of the International Criminal Court (1998), 2187 UNTS 90, Art. 7(2)(h)

⁸⁴ International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 48; International Committee of the Red Cross, Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 51(5)(b); Walzer, Just and Unjust Wars, supra note 48, pp. 105 – 110.

⁸⁵ Ibid.

COMPARATIVE PERSPECTIVE AND HISTORICAL PRECEDENTS

86. The ANC’s struggle is not unique. National liberation movements in Algeria, Namibia, Zimbabwe (Rhodesia), and elsewhere similarly resorted to guerrilla warfare when denied peaceful paths to self-determination.⁸⁶ The United Nations and the Organisation of African Unity recognised these movements as legitimate representatives of oppressed peoples, granting them international standing and moral credibility.⁸⁷ Historical scholarship acknowledges that while guerrilla warfare involves ethical dilemmas in that civilians might be caught in the crossfire or suffer collateral harm, it can be justified where the oppressive regime systematically uses state terror, murder, and torture to prevent non-violent political change.⁸⁸

MORAL PHILOSOPHERS AND POLITICAL THINKERS ON RESISTANCE

87. Political philosophers and ethicists have long argued that where a state engages in gross injustice, citizens or subjects have a moral right, if not a duty, to resist.⁸⁹ Hannah Arendt stressed that violent resistance sometimes emerges from the unbearable suppression of political freedom.⁹⁰ John Rawls recognised that in cases of “outlaw states” or severe injustice, oppressed groups may be justified in rebellion to restore a well-ordered society founded on justice.⁹¹ Michael Walzer, a leading just war theorist, observes that when a regime systematically tramples fundamental human rights, the oppressed may justifiably resort to violence as a last-ditch mechanism of self-defence and liberation.⁹²

14. INTERNATIONAL SUPPORT AND OPINIO JURIS

88. The ANC’s struggle garnered broad international support, from states imposing sanctions on South Africa to the UN General Assembly and Security Council passing resolutions condemning apartheid and supporting liberation movements.⁹³ This global endorsement reflects an opinio juris that recognises armed resistance in situations of racist oppression as a legally and morally defensible response. Such support further undercuts the notion that the ANC’s violence was merely criminal, placing it instead within a recognised category of lawful resistance authorised, at least implicitly, by the international community’s moral and legal stance on apartheid.

⁸⁶ Davis, supra note 25, pp. 102 – 105; Farbstein, supra note 31.

⁸⁷ John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015), pp. 200 – 210; Ruth First, Selected Writings (International Union of Left Publishers 2022) Introduction by Vashna Jagarnath, pp 41 – 44.

⁸⁸ Organisation of African Unity Liberation Committee Documents, (1960s–1980s); UN GA Res 3070 (XXVIII) (1973).

⁸⁹ Malcolm N Shaw, International Law, (CUP, 2014), pp. 8, 91, 434, 943 and 1144.

⁹⁰ Hannah Arendt, On Violence (Harcourt Brace & World, 1970), p. 20.

⁹¹ Cécile Fabre, Cosmopolitan War, (Oxford University Press, 2012), pp. 83 – 90.

⁹² John Rawls, The Law of Peoples (Harvard University Press, 1999), pp. 89 – 95.

⁹³ Michael Walzer, Just and Unjust Wars, supra note 48, p. 108.

BALANCING THE SCALES OF HARM AND NECESSITY

89. The fundamental question is whether the harm caused by guerrilla warfare can be justified by the liberation achieved. Under apartheid, millions were systematically disenfranchised, brutalised, and denied fundamental human rights. The harm inflicted by the liberation struggle, while accurate, was relatively limited in scope when weighed against the long-term moral good of dismantling institutionalised racism and achieving democratic governance.⁹⁴ The disproportion between the regime’s violence, oppression, and the restricted, principled use of force by MK underscores that the cost of armed resistance was outweighed by the emancipation it ultimately secured.

POST– CONFLICT RECONCILIATION

90. The Truth and Reconciliation Commission acknowledged the complexity of violence committed by all sides but also recognised the moral legitimacy of the anti-apartheid cause. The relative restraint exercised by MK, the focus on legitimate targets, and the overarching quest for a just peace helped pave the way for reconciliation. This outcome reaffirms that even within the tragic necessities of guerrilla warfare, the pursuit of liberation guided by ethical and legal principles can achieve a morally justifiable end. In addition, given the systematic violence and oppression inflicted upon the Black population by the apartheid regime, MK's actions can be interpreted as self-defence, both individually and collectively. The denial of fundamental human rights, the use of brutal force to maintain control, and the absence of legal avenues for redress could be seen as creating a situation where armed resistance was a necessary form of self- preservation. ⁹⁵

91. With peaceful means of resistance consistently suppressed and avenues for political participation blocked, armed struggle may have been the only viable option for achieving liberation.⁹⁶ The Sharpeville massacre, where peaceful protesters were shot by police, and the banning of the ANC and other anti-apartheid organisations illustrate the limitations of non- violent resistance in the face of a repressive regime.

92. In respect of the instances set out in paragraphs 71 to 74, it is imperative that it be viewed in totality with the factual matrix present. The ANC started as a nonviolent group. Its aim was not to resort to violent measures to achieve freedom. However, as the apartheid government increasingly suppressed nonviolent forms of protest, the ANC's leadership, particularly after 1960, resorted to armed struggle as a last resort.⁹⁷ This decision was grounded in both ethical and practical considerations as peaceful resistance was met with state brutality; the Sharpeville massacre being a stark example where police opened fire on unarmed protesters. The ANC's leadership, including Nelson Mandela and others, realised that the political space for non- violent protest effectively had been closed by the regime's repressive laws and violence.⁹⁸

93. The Truth and Reconciliation Commission determined that political violence in South Africa led to a total of 21 000 deaths, with 7 000 occurring from 1948 to 1989 and 14 000 deaths in

⁹⁴ UN Security Council Resolution 418 (1977); UN GA Res 3117 (XXVIII) (1973); Shaw, supra note 88, pp. 255 – 260.

⁹⁵ Truth and Reconciliation Commission of South Africa, Final Report (1998), Vol.2, pp. 300 – 330.

⁹⁶ Ibid.

⁹⁷ Farbstein, supra note 31, at 1 – 5.

⁹⁸ “Umkhonto we Sizwe (MK)”, (South African History Online), https://www.sahistory.org.za/article/umkhonto-wesizwe-mk, accessed on 13 December 2024.

subsequent years until 1994.⁹⁹ Also, 22 000 injuries occurred during the transition period from

1990 to 1994.¹⁰⁰ In most instances, these deaths and injuries emanated from state action.

94. In comparison, MK operations killed an estimated number of 130 (One Hundred and Thirty) people in its quest for liberation.¹⁰¹ The stated objective of MK was never to engage in operations that deliberately targeted civilians or White people. Targets were not selected based on race, and most attacks were aimed at the apartheid state, its organs and persons who collaborated with the apartheid regime. According to Aboobaker Ismail, a senior MK operative, who gave evidence at the TRC hearing on the Church Street bombing in Pretoria on 4 May 1998:

This was never a target, an attack against Whites. We never fought a racist war. We fought to undo racism… We never set out deliberately to attack civilian targets. We followed the political objectives of the African National Congress in the course of a just struggle. However, in the course of a war, life is lost, and the injury to and the loss of life of innocent civilians sometimes becomes inevitable. The challenge before us was to avoid indiscriminate killing and to focus on enemy security forces... Whilst Umkhonto we Sizwe had the means to attack civilians, it would have been very easy to come to various houses and shoot people, Umkhonto never did that sort of a thing. It did not take the easy route. Instead, it concentrated on military targets, on state infrastructure, often at the cost of the lives of its own cadres. Despite these noble intentions, the majority of casualties of MK operations were civilians. These civilians included those, that members of the ANC apparently regarded as legitimate targets: ‘collaborators’ in the form of councillors, state witnesses at the trials of ANC members, suspected informers and the like. In other words, they were ‘deliberately targeted civilians’. For example, in the period 1976 to 1984, of some seventy-one deaths as a result of MK actions, nineteen were members of the security forces and fifty-two were civilians. The ANC Kabwe Conference held in Zambia in June 1985 showed a hardening in the ANC’s attitude towards civilian casualties. Two days before the Conference, South African security forces launched a cross-border raid on residences in Gaborone in Botswana, killing twelve people. According to the ANC, none of the casualties were MK operatives. This attack on what the ANC described as ‘very, very soft targets’ formed the background to the Conference. The ANC submission to the Commission states that the Conference: “reaffirmed ANC policy with regard to targets considered legitimate: SADF and SAP personnel and installations, selected economic installations and administrative infrastructure. But the risk of civilians being caught in the crossfire when such operations took place could no longer be allowed to prevent the urgently needed, all-round intensification of the armed struggle. The focus of armed operations had to shift towards striking directly at enemy personnel, and the struggle had to move out of the townships to the White areas”.¹⁰²

95. Whether this was justified must be weighed against the test of proportionality. In this case, were the measures taken to achieve liberation excessive? It is unlikely that a reasonable person, upon the assessment of the complete factual matrix of apartheid, would answer in the negative as those oppressed endured far more suffering, death and humiliation during the apartheid era.

⁹⁹ “Truth and Reconciliation Commission - Special Hearing: 27 May 1997", (Department of Justice, 1997), https://www.justice.gov.za/trc/media/1997/9705/s970527b.htm, accessed on 11 November 2024.

¹⁰⁰ Ugorji, Basil. From Cultural Justice to Inter-Ethnic Mediation: A Reflection on the Possibility of Ethno-Religious Mediation in Africa

(Outskirts Press, 2012), pp. 65 – 66.

¹⁰¹ Truth and Reconciliation Commission of South Africa, Truth and Reconciliation Commission of South Africa Report, Vol. 2 (Government Printer, 1998), pp. 326 – 327.

102 Truth and Reconciliation Commission (TRC), TRC Final Report Volume 6, “ANC Targets”, p. 227, https://sabctrc.saha.org.za/reports/volume6/section3/chapter2/subsection7.htm, accessed on 28 December 2024.

96. Even weighed against the death toll of 7 000 (Seven Thousand) people mentioned in paragraph 933, a death toll of 130 (One Hundred and Thirty) is, in all senses of the word, proportionate when one weighs up oppression suffered by those oppressed during the apartheid era and under British and Dutch colonial rule.

THE RIVONIA TRIAL AND NELSON MANDELA'S QUOTE

97. The Rivonia Trial held in 1963 and 1964 was pivotal in the anti-apartheid struggle. Nelson Mandela and other key leaders were charged with sabotage and conspiracy to overthrow the government.¹⁰³ During the trial, Mandela delivered his famous "Speech from the Dock" in which he articulated the justifications for armed struggle, stating “I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die”.¹⁰⁴

98. Mandela's powerful words resonated globally, drawing attention to the injustices of apartheid and the legitimacy of the ANC's cause. Although Mandela and his co-accused were sentenced to life imprisonment, the trial served to galvanise international opposition to apartheid.¹⁰⁵

INTERNATIONAL LAW AND THE RIGHT TO SELF-DETERMINATION

99. The legality of armed struggle against colonial and racist regimes is grounded in the right to self- determination, a fundamental principle of international law enshrined in the United Nations Charter and subsequent resolutions.¹⁰⁶

100. This right allows people under colonial or racist domination to freely determine their political status and pursue their economic, social, and cultural development.

101. The ANC also sought to gain international legitimacy by securing support from the United Nations, the Organisation of African Unity, and other international bodies.

102. Under international law, the ANC's armed struggle can be justified as a lawful response to apartheid – a system of institutionalised racial discrimination condemned by the global community. The right to self-determination is outlined in Article 1 of the UN Charter.¹⁰⁷

103. As established in the International Covenant on Civil and Political Rights (ICCPR), Article 1 affirms that oppressed peoples are entitled to resist colonial and racist regimes in pursuit of independence and self-governance. This principle, recognised as a norm of customary

¹⁰³ “Rivonia Trial 1963–1964”, (South African History Online, 31 March 2011, last updated 27 August 2019),

http://www.sahistory.org.za/article/poqo, accessed on 7 November 2024.

¹⁰⁴ “On Freedom, ‘I am prepared to Die’”, (United Nations, n/d), https://www.un.org/en/events/mandeladay/court_statement_1964.shtml, accessed on 7 November 2024.

¹⁰⁵ “Rivonia Trial 1963 – 1964”, (South African History Online, 31 March 2011, last updated 27 August 2019),

http://www.sahistory.org.za/article/poqo, accessed on 7 November 2024.

¹⁰⁶ Héctor Gros Espiell, “The Right to Self-Determination: Implementation of United Nations Resolutions”, (Study prepared by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, United Nations, 1980) at pp. 200 – 201.

¹⁰⁷ Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 1.

international law, was frequently invoked by African liberation movements to legitimise their struggle against colonial powers.¹⁰⁸ In exploring this, it is important to note the following:

1. The right to self-determination, as established in ICCPR Article 1, affirms the entitlement of oppressed peoples to resist colonial and racist regimes in pursuit of independence and self-governance.¹⁰⁹

2. While ICCPR Article 1 affirms the right to self-determination, it does not explicitly address the use of force, leading to debates about the legality and legitimacy of armed struggle.¹¹⁰

3. Several factors must be considered when evaluating the use of arms in the context of self- determination, including necessity and proportionality, discrimination, human rights law, freedom of expression, and the right to resist.¹¹¹

4. The United Nations has urged governments to exercise vigilance against the activities of mercenaries and ensure that their territories and nationals are not used to destabilise or overthrow another state, especially one fighting against colonial domination or foreign occupation. This underscores the need to minimise human suffering and protect civilians, aligning with human rights law and ensuring fundamental rights are respected even during armed conflict.¹¹²

5. The right to self-determination should be distinguished from any general right of peoples to declare secession unilaterally.¹¹³ Provisions of the UN Charter were used to clarify state commitments in drafting Article 1 of the ICCPR, emphasising the principle of equal rights and self-determination of peoples.¹¹⁴ This right enables people to freely determine their political status and pursue economic, social, and cultural development.

6. The ICCPR also provides that every citizen shall have the right to vote in genuine periodic elections by universal and equal suffrage without unreasonable restrictions.¹¹⁵ This underscores the importance of political rights and participation in the context of self-determination.

104. The Geneva Convention and Additional Protocols further reinforce the ANC’s stance. While these protocols primarily apply to conflicts between states, they also extend protection to individuals resisting colonial domination and racist regimes, particularly under Article 1(4) of Protocol I. This provision demonstrates an international recognition of the legitimacy of armed resistance in cases of extreme oppression.¹¹⁶ The ANC’s tactics, designed to avoid civilian casualties and focus on state infrastructure, align with the principles of proportionality

¹⁰⁸ International Covenant on Civil and Political Rights (adopted 16 December 1966, and entered into force 23 March 1976), 999 UNTS 171, Article 1.

¹⁰⁹ Espiell, supra note 105, pp. 56 – 60.

¹¹⁰ Shaw, supra note 88, pp. 255 – 257, 291, 1086 and 1142 – 1143.

¹¹¹ Walzer, supra note 48, pp. 90 – 108; ICRC, Customary International Humanitarian Law Study (2005), Rules 1 – 24.

¹¹² GA Res 44/34 (4 December 1989), International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

¹¹³ Centre for Civil and Political Rights, Simple Guide on the International Covenant on Civil and Political Rights (ICCPR): An Overview of Articles 1–27 (CCPR Centre, 2023).

¹¹⁴ Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978), 1125 UNTS 3, Article 1(4).

¹¹⁵ Centre for Civil and Political Rights, Simple Guide on the International Covenant on Civil and Political Rights (ICCPR): An Overview of Articles 1–27 (CCPR Centre, 2023).

¹¹⁶ Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978), 1125 UNTS 3, Article 1(4).

and necessity under international humanitarian law, setting their actions apart from indiscriminate violence.¹¹⁷ Article 1(4) of Protocol I demonstrates an international recognition of the legitimacy of armed resistance in cases of extreme oppression and states by explicitly stating:

(4) The situations referred to in the preceding paragraphs include armed conflicts in which peoples are fighting against colonial domination, alien occupation and racist regimes in the exercise of their right of self- determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States under the Charter of the United Nations.¹¹⁸

105. The ANC's unwavering commitment to the principles of international humanitarian law was evident in its military tactics. These tactics were meticulously designed to minimize civilian casualties and focus on disrupting the apparatus of the apartheid state.¹¹⁹

106. Article 48 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) states:

To ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.¹²⁰

107. Article 51(5)(b) of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) provides:

An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive about the concrete and direct military advantage anticipated.¹²¹

108. The realities of guerrilla warfare and the brutal counter-insurgency tactics employed by the apartheid regime created immense challenges in always adhering strictly to the Articles cited above. However, the ANC's overall strategy and stated intent demonstrate a commitment to minimising harm to civilians and upholding the principles of international humanitarian law.¹²² This commitment, coupled with the just cause of fighting against a system of institutionalised

¹¹⁷ Davis, supra note 25, pp. 22, 201, 218.

¹¹⁸ Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978), 1125 UNTS 3, Article 1(4).

¹¹⁹ Nelson Mandela Foundation, “List of MK Operations”, O'Malley Archives. https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02918/06lv02949.htm, accessed on 12 December 2024.

¹²⁰ International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 48.

¹²¹ International Committee of the Red Cross, Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 51(5)(b).

¹²² Landau, supra note 33; Watts supra note 37; Davis, supra note 25, pp. 4, 14, 18, 30, 48, 102 132, 215; Mandela supra note

45.

racial oppression that denied fundamental human rights and foreclosed all peaceful avenues for change, strengthened the argument for the legitimacy of the ANC's armed struggle.¹²³

109. Critics of the legality of armed resistance generally highlight the risks to civilians and the disruption of public order. Such critiques overlook the systemic violence and repression of the apartheid regime, which left South African resistance groups with few viable alternatives. The ANC exercised considerable restraint, directing its actions at symbols of state power rather than civilian targets, thereby adhering closely to international standards for lawful resistance.¹²⁴

APARTHEID AS A CRIME AGAINST HUMANITY

110. Article II of The International Convention on the Suppression and Punishment of the Crime of Apartheid (“Apartheid Convention”),¹²⁵ which was adopted by the United Nations General Assembly on 30 November 1973 and came into effect on 18 July 1976, defines the term “crime of apartheid” as follows:

...shall include similar policies and practices of racial segregation and discrimination as practised in Southern Africa, shall apply to the following inhuman acts committed to establish and maintain domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

1. Denial to a member or members of a racial group or groups of the right to life and liberty of person:

   1. By murder of members of a racial group or groups;

   2. By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;

   3. By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;

2. Deliberate imposition on a racial group or groups of living conditions calculated to cause it or their physical destruction in whole or in part;

3. Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups fundamental human rights and freedoms, including the right to work, the right to form recognised trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;

¹²³ Christopher Finlay, Terrorism and the Right to Resist (Cambridge University Press, 2015), pp. 136 – 140; John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015), p. 120.

¹²⁴ Davis, supra note 25, pp. 5 and 102

¹²⁵ International Convention on the Suppression and Punishment of the Crime of Apartheid, supra note 78.

4. Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;

5. Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;

6. Persecution of organisations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.¹²⁶

111. In amplification of the above definition of the “crime of apartheid”, Article 7 of the Rome Statute of the International Criminal Court (“Rome Statute”) deals with crimes against humanity,¹²⁷ More specifically, it codifies under Article 7 paragraph 1(j) the crime of apartheid, which is defined in Article 7 paragraph 2(h) as follows:

…inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.¹²⁸

112. For purposes of comprehensive overview, the crimes listed in Article 7 paragraph 1 of the Rome Statute are:

     1. Murder;

     2. Extermination;

     3. Enslavement;

     4. Deportation or forcible transfer of population;

     5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

     6. Torture;

     7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;

     8. Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

     9. Enforced disappearance of persons;

     10. The crime of apartheid; and

     11. Other inhumane acts of a similar character that intentionally cause great suffering or serious injury to the body or to mental or physical health.¹²⁹

113. The relevance of the Apartheid Convention and the Rome Statute cited in paragraphs 110, 1111 and 112 above provide important context to the actions of the ANC and other groups against an apartheid regime.

¹²⁶ International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), 1015 UNTS 243, art II, (a) – (f).

¹²⁷ Rome Statute of the International Criminal Court (1998), 2187 UNTS 90, art. 7.

¹²⁸ Rome Statute of the International Criminal Court (1998), 2187 UNTS 90, art. 7 paragraph 2(h).

¹²⁹ Rome Statute of the International Criminal Court (1998), 2187 UNTS 90, art. 7 paragraph 1 (a – k).

114. From the above, by international standards, even at the time when South Africa was under apartheid rule, international law and standards deemed “apartheid” as a crime.

115. At this juncture, it is imperative to note that only 4 (four) states, namely South Africa, Portugal, the United Kingdom, and the United States of America, voted against the adoption of the Apartheid Convention.¹³⁰

116. The Apartheid Convention marked a powerful international denunciation of apartheid, going beyond a mere violation of United Nations principles. It criminalised apartheid itself, directly challenging the core ideology and values of South Africa's apartheid regime. Though directed primarily at Southern Africa, the Convention served as a global warning, asserting that racial discrimination would not be tolerated and condemning any state practising such policies. It stood as a stark rebuke of the apartheid government’s immoral stance on racial segregation and injustice, positioning apartheid as a crime against humanity.¹³¹

APARTHEID AND ARMED RESISTANCE WITHIN THE PARADIGM OF INTERNATIONAL LAW AND ITS APPLICATION

117. The ANC’s armed struggle can also be understood through collective self-defence. While classical notions of self-defence in international law primarily address inter-state conflicts, the underlying logic - that it may be lawful to use force to resist unlawful violence - applies analogously to people systematically oppressed by a regime committing grave human rights violations.¹³² The apartheid government’s extensive use of police brutality, arbitrary arrests, torture, and even lethal force against peaceful protesters amounted to an ongoing attack on the fundamental rights and security of Black South Africans.¹³³ Resorting to armed struggle thus functioned as a form of collective self-defence against a state apparatus that offered no meaningful, peaceful recourse.

118. The moral right to resist oppressive rule is also reflected in just war theory, whose principles have influenced and intersected with modern international legal standards.¹³⁴ Just war theory requires a just cause (fighting against manifest injustice), right intention (aiming to restore rights and achieve justice), last resort (exhaustion of all peaceful avenues), and proportionality (using no more force than necessary).¹³⁵ The ANC’s cause - ending institutionalised racial subjugation

- was undeniably just. It intended to establish a democratic, non-racial society, and it turned to violence only after decades of peaceful protests were met with brutal state repression.¹³⁶

¹³⁰ Gerhard Kemp and Victor Kattan, The Significance of South Africa’s Accession to the 1973 Convention and Suggestions for Improving the Treaty Text, (Opinio Juris, 31 May 2024), https://opiniojuris.org/2024/05/31/the-significance-of-south-africas-accession- to-the-1973-apartheid-convention-and-suggestions-for-improving-the-treaty-text/, accessed on 6 November 2024.

¹³¹ Ibid.

¹³² Luís Cordeiro-Rodrigues and Danny Singh (eds), Comparative Just War Theory: An Introduction to International Perspectives (Rowman & Littlefield, 2023), pp. 140 – 150; Farbstein, supra note 31, pp 1 – 3 and Fritz Allhoff, Nicholas G. Evans and Adam Henschke (eds), Routledge Handbook of Ethics and War: Just War Theory in the Twenty-First Century (Routledge, 2015), p. 164.

¹³³ John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 1978), p. 120; Davis, supra note 25, pp. 1 – 5.

¹³⁴ Walzer, supra note 48, pp. 90 – 108.

¹³⁵ Ibid.

¹³⁶ Landau, supra note 32, p. 540; Farbstein, supra note 31.

119. The Sharpeville Massacre of 1960, where police killed 67 unarmed demonstrators, epitomised the futility of non-violent resistance against apartheid.¹³⁷ In its aftermath, including the banning of the ANC and the PAC, every peaceful political channel was closed. Armed resistance emerged as the last resort, a stance consistent with just war criteria and the broader moral right to liberate oneself from tyranny.¹³⁸

120. Both just war theory and international humanitarian law emphasise that the use of force must be necessary and proportionate. The ANC’s armed wing, MK, deliberately focused on sabotage and symbolic targets - power stations, government installations, and state infrastructure - rather than aiming for mass casualties.¹³⁹ This strategy aligns with Additional Protocol I to the Geneva Conventions (1977), which extends legal recognition to struggles “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in exercising their right of self-determination”.¹⁴⁰

121. Articles 48 and 51 of Protocol I enshrine the principles of distinction and proportionality, requiring parties to distinguish between combatants and civilians and prohibiting attacks expected to cause excessive civilian harm relative to anticipated military advantage.¹⁴¹ The ANC’s stated objective was to avoid civilian casualties, directing its operations at the symbols and instruments of state repression.¹⁴² Although perfect adherence was challenging in an asymmetrical conflict, the ANC’s efforts demonstrate a commitment to minimising harm while pursuing liberation.

122. This measured approach was crucial to the ANC’s national and international standing. It bolstered the ANC’s moral authority and strengthened its legal position. The restraint shown, particularly in the initial sabotage campaigns, distinguished the ANC’s struggle from acts of indiscriminate terrorism. Instead, it reflected compliance, insofar as possible, with the principles underlying international humanitarian law and just war theory, reinforcing the lawful character of the ANC’s resistance under international law.¹⁴³

123. International support for the ANC’s position further legitimised its armed struggle. The OAU recognised and supported liberation movements throughout the continent, allowing member states to offer sanctuary, training, and diplomatic assistance to the ANC.¹⁴⁴ The United Nations General Assembly and Security Council adopted numerous resolutions condemning apartheid and calling for its eradication, acknowledging that South Africa’s oppressed majority was entitled to fight for freedom.¹⁴⁵ Sanctions imposed on South Africa, combined with widespread diplomatic isolation, reinforced the notion that the apartheid government operated outside lawful governance and that armed resistance was not only understandable but justifiable.

124. State practice and opinio juris - the two pillars of customary international law - reflect a global consensus that liberation movements against racist and colonial regimes have a legitimate claim

¹³⁷ “Sharpeville Massacre, 21 March 1960”, South African History Online, https://www.sahistory.org.za, accessed on 12 December 2024.

¹³⁸ Farbstein supra note 31, pp. 1 – 5.

¹³⁹ Davis supra note 25, pp. 201, 218.

¹⁴⁰ Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), 1125 UNTS 3, art 1(4).

¹⁴¹ Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978,) 1125 UNTS 3, arts 48, 51.

¹⁴² “Umkhonto we Sizwe Manifesto” quoted in Nelson Mandela Foundation, “List of MK Operations”, O’Malley Archives https://omalley.nelsonmandela.org, accessed on 12 December 2024.

¹⁴³ Luís Cordeiro-Rodrigues and Danny Singh (eds), Comparative Just War Theory: An Introduction to International Perspectives

(Rowman & Littlefield, 2023), pp. 140 – 141; Farbstein, supra note 31, pp. 3 – 4.

¹⁴⁴ UN Security Council Resolution 418 (4 November 1977); subsequent SC and GA resolutions condemning apartheid.

¹⁴⁵ UN Security Council Resolution 418 (4 November 1977); subsequent SC and GA resolutions condemning apartheid.

to use force when peaceful means are unavailable.¹⁴⁶ Thus, the ANC’s struggle was situated within a broad legal and political framework that validated its cause and methods.

125. Taken together, the principles of self-determination, the characterisation of apartheid as a crime against humanity, the logic of self-defence, and the criteria of just war theory converge to validate the ANC’s resort to armed struggle under international law. The ANC did not hastily embrace violence; it was compelled to do so by relentless state repression, the closure of peaceful political avenues, and the urgent moral imperative to end institutionalised racial subjugation.

126. By emphasising proportionality, necessity, and the avoidance of civilian casualties, the ANC acted in accordance with evolving international humanitarian law standards and the international legal recognition of legitimate liberation movements. International instruments, UN resolutions, and broad international support reinforce the notion that people under racist regimes can lawfully resort to force to secure their fundamental rights.

127. In the final analysis, the ANC’s armed resistance contributed decisively to dismantling apartheid and establishing a non-racial democracy in South Africa. Its struggle exemplifies how international law - when viewed holistically - supports the lawful use of force by oppressed peoples as a last resort to achieve self-determination, restore fundamental human rights, and overcome a criminal regime that rendered peaceful change impossible.

CONCLUSION

128. In conclusion, the ANC’s resort to armed struggle against the apartheid regime in South Africa can be characterised as both a morally defensible and legally recognisable response under the framework of international law. Faced with an entrenched system of racial subjugation, it declared apartheid a crime against humanity. After decades of peaceful protest that had been met with brutal state repression, it found all non-violent avenues to political reform effectively foreclosed.

129. International law, mainly as it crystallised in the era of decolonisation and human rights codification, upholds the right of oppressed peoples to self-determination. When a state persists in racist domination and denies fundamental political rights, lawfully constituted recourse to armed resistance may arise as a last resort. Instruments such as the UN Charter, the International Covenant on Civil and Political Rights, and the Declaration on Friendly Relations, combined with the international recognition of apartheid as a crime against humanity, collectively endorse the legality of armed struggle against a manifestly unjust and unlawful regime.

130. Throughout its campaign, the ANC and allied movements aimed to confine violence to legitimate state and military targets, consciously endeavouring to minimise harm to civilians. By observing principles akin to proportionality and distinction - concepts later encapsulated in Additional Protocol I to the Geneva Conventions - the ANC reinforced its claim to moral and legal legitimacy. Although inevitably, some civilians suffered harm, such outcomes were exceptions, not objectives, and stand in stark contrast to the systemic and deliberate violence of the apartheid state itself.

¹⁴⁶ Shaw, supra note 88, pp.74 – 88, 116 –117 and 1295 – 1296.

131. The eventual dismantling of apartheid and South Africa’s transition to a non-racial, constitutional democracy bears witness to the essential justice and legality underpinning the armed resistance. The liberation struggle, firmly rooted in an international legal order that rejects racial oppression and sanctions resistance to it, thus exemplifies how force, when meticulously directed and morally justified, may serve as a lawful instrument of liberation against a regime perpetrating grave violation of international human rights standards.

PALESTINIAN ARMED RESISTANCE

132. In examining the moral and legal frameworks governing the right to resist oppressive domination, the situation of the Palestinians under Israeli occupation parallels key conditions that justified armed resistance in other historical contexts, including the ANC’s struggle against apartheid South Africa.¹⁴⁷ Central to this argument is the principle of self-determination, recognised as a foundational tenet of international law, and the illegality of Israel’s prolonged occupation, repeatedly affirmed by authoritative legal instruments and bodies, including the International Court of Justice (“ICJ”).¹⁴⁸

133. A fundamental starting point is the Palestinians’ internationally acknowledged right to self- determination,¹⁴⁹ enshrined in the Charter of the United Nations,¹⁵⁰ the International Covenant on Civil and Political Rights,¹⁵¹ and reaffirmed in multiple UN General Assembly and Security Council resolutions.¹⁵²

134. Self-determination is a right belonging to all peoples, including those living under foreign occupation. The ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“Wall Advisory Opinion”) confirmed that Israel’s policies in the Occupied Palestinian Territory (“OPT”) violate international law and impede the Palestinians’ right to self-determination.¹⁵³ This opinion aligns with a broader international consensus, reflected in UN Security Council resolutions and international human rights reports, that Israel’s continued settlement enterprise and annexationist policies are unlawful.¹⁵⁴ The occupation, initially established in 1967 and rooted in displacement dating back to 1948, is widely regarded as illegal under international law.¹⁵⁵

¹⁴⁷ Davis, supra note 25, pp. 1 – 51.

¹⁴⁸ International Court of Justice, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (Advisory Opinion), [2004], ICJ Rep 136, paras 115 – 122.

¹⁴⁹ Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), 14 December 1960.

¹⁵⁰ Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art 1(2).

¹⁵¹ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171, art 1.

¹⁵² United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970); United Nations General Assembly, Importance of the Universal Realisation of the Right of Peoples to Self-Determination and of the Speedy Granting of Independence to Colonial Countries and Peoples, UNGA Res 3236 (XXIX) (22 November 1974).

¹⁵³ Wall Advisory Opinion, supra note 148, para 122.

¹⁵⁴ UN Security Council Resolution 2334 (23 December 2016); “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution”, (Human Rights Watch, 2021), https://www.hrw.org/report/2021/04/27/threshold- crossed/israeli-authorities-and-crimes-apartheid-and-persecution, accessed on 12 December 2024.

¹⁵⁵ Walid Khalidi (ed), From Haven to Conquest: Readings in Zionism and the Palestine Problem Until 1948 (Institute for Palestine Studies, 1971), pp. 600, 650 – 658 and 682; International Court of Justice, Summary of the Advisory Opinion of 19 July 2024 https://www.icj-cij.org/index.php/node/103742, accessed on 24 December 2024; United Nations, Study on the Legality of the Israeli Occupation of the Occupied Palestinian Territory, Including East Jerusalem (2023),

135. The illegality of the occupation underpins the Palestinians’ moral and legal claims to resistance. Like the ANC, which turned to armed struggle after decades of non-violent efforts were met with state repression, Palestinians facing enduring dispossession and exclusion have long pursued political and diplomatic channels. The Palestine Liberation Organization (“PLO”), broadly representing the Palestinian people, has accepted the principle of a two-state solution based on the 1967 borders.¹⁵⁶ Indeed, the international community has supported a negotiated settlement through the Oslo Accords and repeated UN resolutions.¹⁵⁷ Yet, Israel’s ongoing settlement expansion, confiscation of land, systematic demolition of Palestinian homes, and refusal to establish internationally recognised borders erode the viability of a two-state solution.¹⁵⁸ These acts contravene the Fourth Geneva Convention,¹⁵⁹ violate the prohibition on the transfer of the occupier’s civilian population into occupied territory,¹⁶⁰ and amount to de facto annexation contrary to international law.¹⁶¹

136. Against this backdrop, groups like Hamas frame their armed resistance as a necessary response to what they perceive as a settler-colonial project sustained by military force and legal impunity.¹⁶² International law acknowledges that peoples under colonial or racist domination may, as a last resort, resort to armed struggle to achieve self-determination when peaceful means are foreclosed.¹⁶³ Israel’s conduct is marked by recurring military operations causing disproportionate harm to Palestinian civilians and collective punishment such as the siege of Gaza¹⁶⁴ In addition, Israel claims the ICCPR does not apply to the occupied territories while also asserting that it does.¹⁶⁵ This contradiction, along with extrajudicial killings, highlights the lack of legal remedies for Palestinians, and extrajudicial killings further underscores the absence of meaningful legal remedies for Palestinians.¹⁶⁶ As with the ANC, which targeted infrastructure and state security forces rather than civilians as a matter of policy, Hamas claims to direct its actions primarily against Israel’s occupying apparatus. While in practice, Hamas’ record includes attacks on civilians, which are impermissible under international humanitarian law

https://www.un.org/unispal/document/ceirpp-legal-study2023/, accessed on 24 December 2024; Amnesty International, “Israeli Settlements and International Law”, (30 January 2019), https://www.amnesty.org/en/latest/campaigns/2019/01/chapter-3-israeli-settlements-and-international-law/, accessed on 24 December 2024.

¹⁵⁶ Rashid Khalidi, Brokers of Deceit: How the US Has Undermined Peace in the Middle East (Beacon Press, 2013), pp. 67–75, 114 – 115 and 146 – 147.

¹⁵⁷ Dan Diker and others, The Oslo Accords at 30: Lessons Learned – Israel’s Accession to Palestinian Authority Support for Terror, Subversion and Radicalization (Jerusalem Centre for Public Affairs, 2023), pp. 33 – 89.

¹⁵⁸ Yehezkel Lein (in collaboration with Eyal Weizman), Land Grab: Israel's Settlement Policy in the West Bank (B'Tselem, May 2002), pp. 11 – 37, 41 – 45, 91 and 133, https://www.btselem.org, accessed on 24 December 2024.

¹⁵⁹ Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949), 75 UNTS 287, arts 49, 53

¹⁶⁰ Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention).

¹⁶¹ Wall Advisory Opinion supra note 148, paras 133 – 134.

¹⁶² Richard Falk and Virginia Tilley, Israeli Practices towards the Palestinian People and the Question of Apartheid (UN ESCWA/ECRI/2017/1 Report, 2017), pp. 1 – 9 and 37.

¹⁶³ Marco Longobardo, The Use of Armed Force in Occupied Territory (Cambridge University Press, 2018), pp. 158 – 159.

¹⁶⁴ UN Human Rights Council, Report of the Commission of Inquiry on the 2014 Gaza Conflict, A/HRC/29/52 (24 June 2015), 17 – 160.

¹⁶⁵ Markus Gunneflo, Targeted Killing (Cambridge University Press, 2016), pp. 216 – 218; Emily Schaeffer Omer-Man, “Extrajudicial Killing with Near Impunity: Excessive Force by Israeli Law Enforcement Against Palestinians”, Boston University International Law Journal, (2017) 35(1), pp. 115 – 156.

¹⁶⁶ Amnesty International, “Gaza: Looming Humanitarian Catastrophe Highlights Need to Lift Israel’s 10-Year Illegal Blockade”, (Press Release, 14 June 2017), https://www.amnesty.org/en/latest/press-release/2017/06/gaza-looming- humanitarian-catastrophe-highlights-need-to-lift-israels-10-year-illegal-blockade/, accessed on 25 December 2024.

(“IHL”), the broader narrative posits that such violence occurs within a context of systemic oppression and a lack of conventional avenues for redress.¹⁶⁷

137. International legal standards, including Additional Protocol I to the Geneva Conventions, emphasise the principles of distinction and proportionality. These principles prohibit direct attacks on civilians and require that harm to civilians not be excessive relative to the anticipated military advantage.¹⁶⁸ Israel’s policies, however, have frequently been criticised by the United Nations and human rights organisations for failing to adhere to these standards.¹⁶⁹ The consistent use of overwhelming force in heavily populated areas and the destruction of civilian infrastructure suggest a lack of proportionality and discrimination. This dynamic reinforces the Palestinian argument that if the occupier persistently flouts the rules of just war, the oppressed party’s resort to armed resistance takes on the character of a liberation struggle akin to those historically recognised in anti-colonial contexts.

138. It must be acknowledged that many states classify Hamas as a “terrorist organisation” and that targeting civilians by any party violates IHL.¹⁷⁰ Yet the legal and moral argument rests on the premise that Palestinians, as an oppressed people facing systematic denial of their fundamental rights and entrenched illegal occupation, possess a claim to resist. This claim does not exonerate unlawful acts committed by Hamas; instead, it situates them within a matrix of sustained injustice and lawlessness.¹⁷¹ The ANC’s example reveals how the international community over time saw the armed struggle as legitimate when directed against a regime committing gross human rights violations and foreclosing legal remedies.¹⁷²

139. Moreover, Palestinian authorities, including the PLO, have repeatedly indicated their willingness to accept a two-state solution - an outcome that would align with international legal norms and restore Palestinian self-determination within recognised borders.¹⁷³ Israel’s persistent refusal to end settlement activity or engage genuinely with the two-state framework demonstrates a lack of good faith on the part of Israel, in that it undermines trust or creates facts on the ground which impede peace talks.¹⁷⁴ This intransigence, combined with the absence of enforceable international sanctions that might compel Israel’s compliance, perpetuates the conditions under which armed resistance can be deemed a last resort under international law.

¹⁶⁷ Oxfam, “Timeline: The Humanitarian Impact of the Gaza Blockade”, https://www.oxfam.org/en/timeline-humanitarian- impact-gaza-blockade accessed 25 December 2024; UNRWA, “Gaza: 15 Years of Blockade”, https://www.unrwa.org/gaza15- years-blockade, accessed on 24 December 2024; UNICEF, “The Gaza Strip: The Humanitarian Impact of 15 Years of Blockade - June 2022, Fast Facts”, https://www.unicef.org/mena/documents/gaza-strip-humanitarian-impact-15-years- blockade-june-2022, accessed on 24 December 2024.

¹⁶⁸ Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, arts 48, 51.

¹⁶⁹ Ibid.; Walzer supra note 48, pp. 90 – 108.

¹⁷⁰ US Department of State, Foreign Terrorist Organizations (Bureau of Counterterrorism, 2024), https://www.state.gov/foreign- terrorist-organizations/, accessed on 25 December 2024.

¹⁷¹ John Dugard and John Reynolds, “Apartheid, International Law, and the Occupied Palestinian Territory”, EJIL (2013) 24(3),

pp. 867 – 913.

¹⁷² Davis, supra note 25, pp. 102 – 105.

¹⁷³ United Nations Human Rights Council, “Report of the United Nations Fact Finding Mission on the Gaza Conflict (Goldstone Report)”, (12th Session, 25 September 2009), UN Doc A/HRC/12/48)., pp 50 and 396; Jeffrey Sachs and Sybil Fares, “A Comprehensive Peace Based on the Two-State Solution Is Still Achievable”, (Al Jazeera, 2 August 2024), https://www.aljazeera.com/opinions/2024/8/2/a-comprehensive-peace-based-on-the-two-state-solution-is-still-achievable, accessed on 25 December 2024.

¹⁷⁴ Shlomo Ben-Ami, Scars of War, Wounds of Peace: The Israeli - Arab Tragedy, (Oxford University Press, 2006), pp. 205 – 215, 229 – 232, 245 – 250, 278 – 282 and 288 – 290; B’Tselem, A Regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This Is Apartheid (12 January 2021), https://www.btselem.org/publications/fulltext/202101_this_is_apartheid, accessed on 24 December 2024.

140. Ultimately, the argument that Hamas’s armed struggle can be viewed as a form of lawful resistance draws on the same moral and legal principles that supported anti-colonial movements elsewhere. If Israel were to abide by international law - dismantling illegal settlements, ceasing collective punishment, and recognising Palestinian sovereignty - the necessity for such resistance might evaporate. Until then, the Palestinian claim to lawful armed struggle, while controversial and subject to important ethical and legal caveats, remains intelligible within the broader context of liberation struggles and international norms governing the use of force against oppressive regimes.

EXPERT OBLIGATIONS

141. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

142. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

143. I confirm that I have not received any remuneration for preparing this report.

Electronic signature Dr Ismail Vadi

[Place of Profession: Johannesburg] [Johannesburg]

[South Africa]

29 December 2024